Four young men swarmed Akila Badhanage on a small pathway in a Brampton subdivision in September 2007.

The Crown’s theory was that Badhanage resisted demands for money and his cellphone and ran away. Jamal Johnson caught up to him and grabbed him in a bear hug as Omari White stabbed him the chest.

Both Johnson and White were found guilty of first-degree murder by a jury in 2009 and sentenced to life in prison with no parole for 25 years.

Eric Robinson was found guilty of second-degree murder by the same jury for being present during the deadly attack and was sentenced to life in prison with no parole for 13 years.

In a decision released Friday, the Ontario Court of Appeal ordered that Robinson’s charge be downgraded to manslaughter and that Johnson get a new trial because a judge erred in instructing the jury on key evidence proving murderous intent.

The appeal court found that Ontario Superior Court Justice John Sproat mistakenly instructed the jury to use a legal principle known as “adoption by silence.”

It means that an accused can be found to agree with a statement made in their presence by remaining silent “in circumstances where the accused could reasonably have been expected to reply,” explains the ruling written by Court of Appeal Justice Janet Simmons on behalf of the three-judge panel.

After Badhanage was stabbed, White, Johnson and Robinson went back to the nearby basement apartment where they had been celebrating White’s 18th birthday.

There, Meleeka Lye testified, she overheard Johnson say, “Why did you do that? That, that was stupid.” She heard Robinson repeat the same thing.

When Lye saw White washing blood off a knife in the sink, he told her he stabbed a youth. She asked why but White did not respond.

Lye later asked White again why he stabbed the youth, and he said it was because the youth was “wiling out.” White also said that he was “heated up” from robbing another high school student the previous day and only getting $20.

Lye testified that Johnson and Robinson were there while White explained why he was “heated up.”

White’s statements were used by the Crown to show White was so angry when Badhanage resisted that he drew a knife, wrote Simmons.

While the trial judge told the jury they could find that Johnson and Robinson adopted White’s statements by silence, the appeal judges disagreed.

There are too many unanswered questions about where Johnson and Robinson were when White made the statements, and whether, given the circumstances, they could have been expected to respond, wrote Simmons.

Without that evidence, the Crown cannot show that White pulled the knife before the group began chasing down Badhanage, and that therefore the whole group had murderous intent, the appeal court found.

In Johnson’s case, the appeal court also disagreed with the trial judge that the two or three seconds between the moment Johnson grabbed Badhanage in a bear hug and the moment White stabbed him was enough time for Johnson to see the knife and form murderous intent.

“I consider the bear hug evidence a thin reed on which to make a finding that he had the necessary intent for murder,” wrote Simmons.

However, the appeal court still ruled that Johnson should face a new trial on the charge of first-degree murder.

Robinson is seeking a sentence of time served on his new manslaughter conviction, which the appeal court will rule on at a later date.